The Department of Health has launched a consultation on the introduction of a new offence of ill-treatment or wilful neglect in the provision of care services. This follows the recommendations of the National Advisory Group on the Safety of Patients in England, which was set up to support Professor Don Berwick’s independent review on improving patient safety.
The National Advisory Group identified a significant gap in current legislation. At present there are specific offences in place for the ill-treatment or wilful neglect of children, adults who lack capacity (section 44 of the Mental Capacity Act 2005) and adults subject to the Mental Health Act 1983. However, there is currently no specific equivalent offence dealing with the ill-treatment or wilful neglect of adults with full capacity.
The Consultation seeks views on a number of aspects of the proposed offence, with the key issues summarised below:
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These proposals form part of the wider picture of health and social reform which includes the Care Bill, which is due to be given further consideration by the House of Commons on 10 March, and proposals to change CQC registration regulations to introduce new “Fundamental Standards” which are set out in a separate consultation due to close on 4 April.
The proposals provide for greater scrutiny of the behaviour of senior management through the introduction of corporate liability provisions similar to those for corporate manslaughter. Any organisation which is being investigated following allegations of poor quality care is likely to experience negative publicity. Where an organisation is convicted of corporate manslaughter, the Court can impose a publicity order requiring it to publicise details of the conviction. If similar publicity orders are introduced in relation to the new offence, this could create greater still reputational impact for any care providers who are successfully prosecuted.
It is also significant that that it will be possible to be found guilty for failure to act (i.e. guilt by omission) where there is wilful neglect. Although the term “wilful” will not be defined in the legislation, the Consultation describes it as acting “deliberately or recklessly” and refers to the National Advisory Group’s view that it is “intentional, reckless or reflects a ‘couldn’t care less attitude’”. This means that it will be more important than ever to ensure that proper reporting procedures to senior management are in place so that there can be no suggestion of a care provider having “turned a blind eye” to poor practice.
The consultation is due to close on 31 March 2014, with legislation expected to follow shortly thereafter. When considering the proposals, it is important to bear in mind that the purpose of the proposed legislation is not to create additional burdens for care providers, but rather to ensure that where ill-treatment or neglect has occurred, there are adequate sanctions in place to deal with it. However, the new offence will undoubtedly increase the circumstances in which failure to provide proper care can be prosecuted, and so care providers should be mindful of the proposed changes.